For public companies entering the busiest financial reporting time of year, the prospect of the Securities and Exchange Commission (“SEC”) temporarily ceasing operations is not a welcome thought. Unless Congress is able to pass appropriations bills or continuing resolutions soon, government activities will shut down and non-essential functions will stop.
Unless Congress is able to pass appropriation bills or continuing resolutions by the end of December 20, 2024, government activities will shut down and non-essential functions will stop as of December 21, 2024. Here is what you can expect from the Division of Corporation Finance if the SEC does not have funding to continue normal operations.
Registration Statements
During a government shutdown, the SEC will not be able to review registration statements or declare them effective. Issuers with registration statements subject to SEC comment at the time of a government shutdown will face tough choices about their offerings. A company could amend its registration statement to state that it will become effective under Section 8(a) of the Securities Act (20 days after filing, without the need for the SEC staff to declare the registration statement effective). This would be a risky choice, especially if the company had unresolved SEC comments at the time of the shutdown, because the company could not be certain that any changes it made to the registration statement to respond to the SEC’s comments were sufficient.
During the shutdown, the SEC may issue stop orders or take other emergency action if necessary. After the SEC resumes normal operations, the staff may request an amendment to a registration statement that has become effective under Section 8(a) of the Securities Act. Regardless of the SEC’s funding status, the liability and antifraud provisions of the federal securities laws apply to registration statements used to sell securities.
Registration statements that are automatically effective, like Form S-8 and Form S-3s for well-known seasoned issuers, will continue to become automatically effective during a government shutdown.
No-Action Requests
The SEC will not be able to review or respond to no-action requests during a government shutdown. This means that any Rule 14a-8 no-action requests that are pending before the shutdown will not be resolved during the shutdown. The SEC’s guidance on a potential shutdown instructs companies and proposal proponents to work together to resolve questions to the best of their ability.
Preliminary Proxy Statements
While the SEC will not review a preliminary proxy statement during a government shutdown, companies must still file a preliminary proxy statement, if required under Exchange Act Rule 14c-5, at least 10 calendar days before the date the definitive proxy statement is first distributed to stockholders.
Exchange Act Reports (Form 10-K, Form 10-Q, Form 8-K, Form 4)
The SEC’s EDGAR system will function during a government shutdown, so there is no holiday for making timely filings of Exchange Act reports. A government shutdown would not excuse a late filing. If you have questions about how a government shutdown could impact your company, please contact a member of Harter Secrest & Emery’s Securities and Capital Markets group.